Virtually all independent observers agree that the Albanian justice system is in need of a radical overhaul. The system suffers from widespread corruption, professional shortages, and structural inefficiencies. Public trust in the courts and law enforcement is extremely low, even by the standards of new democracies. All of this represents an enormous challenge for rule of law, and the Albanian political class seems to agree on the need for justice sector reform, if not necessarily on how to go about it.
The Open Society Foundation for Albania was one of the first local actors to identify the need for thorough changes to the country’s current constitution. These changes should ensure, among other priorities, a judicial system that is both independent of politics and accountable to the public. A broad process of consultations we convened has produced a comprehensive roadmap for constitutional reforms.
Pressure has been growing from the European Union to expeditiously adopt such reforms, amend the constitution, and restore public trust in the system. In November 2014, the Albanian Parliament appointed a special committee with a mandate to prepare proposals for reform of the justice sector.
The committee was charged with three tasks: undertake a thorough analysis of the justice system; prepare a strategic document outlining the main objectives of reform; and draft a comprehensive package of legislative measures, including any constitutional amendments, needed to implement the reforms. The committee is being assisted by a panel of high-level experts, a technical secretariat, and several external advisors, including international experts. The initial mandate of the committee was recently extended to the end of June 2016.
At the end of September 2015, the group of experts presented a draft package of constitutional amendments, which were forwarded to the Council of Europe’s Venice Commission for its consideration. The Venice Commission provided preliminary feedback in December and is expected to publish its final report by March. Any approved constitutional amendments will require new legislation.
Efforts have been made to ensure the process is politically inclusive from its inception. While the Democratic Party–led opposition is supportive, in principle, of the need for reforms, it initially refused to participate in the work of the special committee over disagreements about the committee’s voting mechanism. A compromise was brokered last summer, but there remain a number of important differences of opinion between the two sides. Ultimately, however, all main parties have committed to accepting the recommendations of the Venice Commission.
At the same time, there has been very substantial international involvement throughout the reform process to date. Two international entities have been particularly active: the European Union’s EURALIUS project, which is offering technical assistance to the reform process, and the local mission of the U.S. Overseas Prosecutorial Development, Assistance, and Training Program, which works to strengthen justice systems internationally. Several EURALIUS and U.S. experts have cochaired or participated as full members in the main working groups and have generally played a significant advisory role in the process.
The scope and depth of the proposed reforms, even just in the constitutional package, touch every level of the judicial and prosecutorial systems. They restructure these systems’ relationship with the country’s political branches, and establish a number of new independent entities. The main proposals can be summarized as follows:
- The Supreme Court will be transformed into a career court deciding only matters of law (not fact), with appointment and dismissal powers taken away from the political branches.
- The autonomy of local prosecutors will be enhanced, and the current dominant role of the prosecutor general will be reduced in favor of a self-governing body with a majority elected by the country’s prosecutors.
- A new disciplinary system will be established for all judges and prosecutors, as well as special anticorruption structures, with dedicated courts, prosecutors, and investigators, and strengthened powers of investigation.
In order to address the current integrity crisis, an exceptional mechanism is being proposed for the one-time vetting of every judge and prosecutor at every level, from local courts to the Constitutional Court. The proposed vetting will cover matters of professional competence, verification of assets declarations, and possible connections to organized crime. The process, which is expected to take place between 2016 and 2019, is bound to be one of the most sensitive aspects of the proposed reforms, legally and politically.
The Open Society Foundation for Albania has been the primary funder of the entire reform process, including the work of the high-level group and their support infrastructure, the online portal, and the bulk of the public events organized to collect public feedback. And this support has been entirely nonpartisan—in addition to the experts officially appointed by the special committee, we have also supported the engagement of the experts of the opposition Democratic Party and those appointed by the minister of justice (who is affiliated with the Socialist Movement for Integration, the junior partner in the governing coalition).
Ensuring the broadest possible public involvement has been a priority to which we have devoted considerable resources. Three rounds of public consultation have been held, in connection with each stage of the reform process to date (analysis, strategic vision, and draft constitutional amendments). These have included dozens of meetings with justice system stakeholders, civil society groups, and the general public. These same groups have also been able to provide written feedback on key draft documents, and access additional information on a dedicated website.
The Open Society Foundation for Albania is aware that even more needs to be done to adequately inform the public about various aspects of the reform process. That’s why we’re taking steps to identify gaps and new ways to more effectively deliver information and solicit public input.